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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
A.S. SUPEHIA, J.
Nagjibhai Kanjibhai Patel – Appellant
Versus
Mukesh @ Pappu Chandraprakash Harivansh Shukla – Respondent
R/Civil Revision Application No.105 of 2019
Decided on : 11-10-2022
REVISION - ORDER VII RULE 11 OF CPC - REJECTION OF PLAINT - SUIT FOR SPECIFIC PERFORMANCE OF AGREEMENT TO SELL AND CANCELLATION OF SALE DEEDS - LIMITATION - CAUSE OF ACTION - WHETHER THE SUIT IS BARRED BY LIMITATION AND THE PLAINT DOES NOT DISCLOSE ANY CAUSE OF AUCTION AND DESERVES TO BE REJECTED BY RESORTING TO THE PROVISION OF ORDER VII RULE 11(A) AND (D) OF THE CPC.
Fact of the Case:
The applicant-original defendant No.1 purchased a land bearing Block No.391/1 by a registered sale deed from defendant No.3-Jigneshbhai Batukbhai Patel for a valuable consideration. In the month of October, 2014, the plaintiff Mukeshbhai Prakashbhai Shukla instituted Special Civil Suit No.639 of 2014 for specific performance of an agreement to sell dated 10.01.2005, executed pursuant to a Power of Attorney (PoA) dated 02.09.2004 and in the alternative to award a compensation of Rs.20 crores. The plaintiff has also prayed for cancellation of various sale deeds, including the sale deed dated 28.02.2005 in favour of the applicant-defendant No.1.
Finding of the Court:
The Court found that the suit was barred by limitation under Article 54 of the Limitation Act, 1963 so far as relief sought in respect of the specific performance of the agreement to sell dated 10.01.2005, is concerned. Since, the substratum of claim of the plaintiff seeking enforcement of agreement to sell is barred by law of limitation, the question of cancellation of the sale deeds executed in favour of the other defendants in the year 2005 does not arise. The Court also found that the plaint did not disclose any cause of action against the defendants, and was therefore required to be rejected under Clause(a) of the Rule 11 of Order VII of the CPC.
Issues: 1. Whether the present revision application is barred by the principle of res judicata; and 2. Whether the suit instituted by the plaintiff is barred by limitation, and the plaint does not disclose any cause of auction and deserves to be rejected by resorting to the provision of Order VII Rule 11(a) and (d) of the CPC.
Ratio Decidendi: 1. The doctrine of res judicata will operate between co-defendants. It will operate against the defendant Nos.2 and 7-A in case they choose to file any proceedings after the decision rendered in the present revision application. Any decision which is passed by this Court will bind them and it will not be open for them to again re-agitate the issues by challenging the impugned order dated 16.0l.2019 passed below Exh.103. 2. The suit is barred by limitation under Article 54 of the Limitation Act, 1963 so far as relief sought in respect of the specific performance of the agreement to sell dated 10.01.2005, is concerned. Since, the substratum of claim of the plaintiff seeking enforcement of agreement to sell is barred by law of limitation, the question of cancellation of the sale deeds executed in favour of the other defendants in the year 2005 does not arise. 3. The plaint does not disclose any cause of action against the defendants, and was therefore required to be rejected under Clause(a) of the Rule 11 of Order VII of the CPC.
Final Decision: The Civil Revision Application was allowed. The impugned order dated 16.01.2019 passed by the learned Principal Senior Civil Judge and Additional Chief Judicial Magistrate, Kathor, Dist.Surat rejecting the application Exh.102 filed under Order VII Rule 11 of CPC seeking rejection of plaint being Special Civil Suit No.159 of 2017 (old No.639 of 2014) is quashed and set aside. As a sequel the plaint is ordered to be returned since the same is barred under clause (a) and (d) of Rule 11 of Order VII of the CPC.
JUDGMENT :
1. In the present application filed under the provision of section 115 of the Civil Procedure Code, 1908 (for short “the CPC”), the applicant has assailed the order dated 16.01.2019 passed by the learned Principal Senior Civil Judge and Additional Chief Judicial Magistrate, Kathor, Dist.Surat rejecting the application Exh.102 filed under Order VII Rule 11 of CPC seeking rejection of plaint being Special Civil Suit No.159 of 2017 (old No.639 of 2014) filed by the applicant-original defendant no.1- Nagjibhai Kanjibhai Patel.
2. Brief facts emerging from the memo of Revision Application are as under:
2.1 On 28.02.2005, the applicant-original defendant No.1 purchased a land bearing Block No.391/1 by a registered sale deed from defendant no.3-Jigneshbhai Batukbhai Patel for a valuable consideration.
2.2 In the month of October, 2014, the plaintiff Mukeshbhai Prakashbhai Shukla instituted Special Civil Suit No.639 of 2014 for specific performance of an agreement to sell dated 10.01.2005, executed pursuant to a Power of Attorney (PoA) dated 02.09.2004 and in the alternative to award a compensation of Rs.20 crores. The plaintiff has also prayed for cancellation of various sale deeds, including the sale deed dated 28.02.2005 in favour of the applicant-defendant no.1.
2.3 It is the case of the defendant no.1 that on 02.09.2004, a forged and fabricated PoA was created in favour of Shri Ramesh Manjibhai Davra, respondent-defendant no.7 fraudulently shown to have been executed by the defendant no.1 and some of other original defendants giving authority to the PoA for dealing in various parcels of land, including the suit lands. The PoA - Shri Rameshbhai Davra has passed away on 05.10.2011 before institution of the suit and he is represented through his legal heirs being defendant nos.7(A) to 7(C).
2.4 It is alleged that on 10.01.2005, based on the fabricated PoA, an agreement to sell is created on a non-judicial stamp paper of Rs.50/- between the plaintiff and the PoA (and not with any of the land owners or) for and on behalf of the land owners) for sale of the suit lands for a consideration of Rs.1.60 Crores. It is stated in the document that an amount of Rs.80 Lakhs is paid by cash by the plaintiff to the PoA (not to the land owners) and balance amount of Rs.80,00,000/- will be paid after the PoA arranges for a clear and marketable title of the suit lands.
2.5 In the year, 2005, the defendant no.1 filed a complaint in the Court of Judicial Magistrate, First Class (JMFC), Kathor against Shri Rameshbhai Davra, PoA and other accused for various criminal offences. The concerned Magistrate made an order under Section 156(3) of the Criminal Procedure Code, 1973 (Cr.P.C.) directing the police to investigate into the matter and submit a report. After the registration of the criminal complaint, on 27.04.2005, before and after conducting investigation, the accused were arrested by the Investigating Officer. The documents were also sent to the Forensic Science Laboratory (FSL), Gandhinagar.
2.6 On 31.01.2006, the FSL, Gandhinagar gave a report observing that the PoA is bogus and fabricated. On 25.09.2006, the Investigating Officer filed charge-sheet in the Court, which led to the registration of Criminal Case No.3571 of 2006.
2.7. In the month of October, 2014, the plaintiff instituted Special Civil Suit No.639 of
2014. On 17.08.2015, the trial Judge rejected application below Exh.5 in Special Civil Suit No.639 of 2014 by observing that prima facie, the PoA as also the agreement to sell is bogus and fabricated, and no evidence was shown that payment of Rs.80,00,000/- is made. It appears that an Appeal From Order against the aforementioned order is filed before this Court, however, there is no interim relief granted therein by this Court.
2.8. On 10.07.2018, an Application Exh.102 is filed by the defendant no.1 under Order VII Rule 11 of the CPC seeking rejection of the plaint. On 16.01.2019, the Trial Court rejected application Exh.102 along with a
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